Monday, May 6, 2013

Fox: Regime Change

Outside the setting of self-defence, unilateral regime change is highly disfavoured in international law. Forcibly deposing a foreign government strikes at the heart of State autonomy protected by Art. 2 (4) UN Charter. Although the Security Council has not responded to the vast majority of cases of regime change in the post-war era, the fundamental nature of non-intervention norms places a heavy burden of justification on proponents of regime change. For the most part the asserted claims cannot surmount this burden. Claims based on democracy promotion rest on uncertain developments in the law of recognition and a logically appealing but normatively weak connection between a regime’s democratic bona fides and its standing to object to external intervention. Claims based on regional democracy promotion regimes incorrectly understand diplomatic sanctions against anti-democratic usurpers to legitimize forcible measures. In fact, those regimes specifically disclaim a reliance on military force. Invitations to intervene by deposed democratic regimes find more support in international law, though only two cases — Haiti and Sierra Leone — appear clearly on point. Critically, the UN played a central role in all stages of those cases. Their precedential value outside that factual setting is unclear. Finally, the claim that regime change is a necessary component of humanitarian intervention rests on the generally weak legal status of such interventions.

The argument that regime change can be a proportional response by a State acting in legitimate self-defence finds more support in the UN Charter and State practice. The US ouster of the Taliban in Afghanistan, which elicited virtually no criticism from other States and certainly no efforts at formal condemnation, stands as the most recent example of a proportionality calculus that takes into account the threat posed by a regime’s continued exercise of power.

Regime change authorized by the Security Council faces few contemporary legal objections. The Security Council regularly connects principles of governance (specifically democratic governance) to its Chapter VII authority over matters of international peace and security. And it has twice used those powers explicitly to approve regime change - the cases of Haiti and Sierra Leone. The Libya intervention is a more ambiguous case, with members of the Security Council sharply disagreeing over whether Resolution 1973 permitted strategic assistance to the rebels as a means of protecting Libyan civilians.